AFS

- 13

- 507

- E Exemption No. 11039

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC 20591

In t he matter of the petition of

A TLAS AIR INC Regulatory Docket No. FAA

- 20 13

- 0710

for an exemption from § 121.1005(c ) of Title 14, Code of Federal Regulations

DENIAL OF EXEMPTION

By letter dated August 2, 2013 , Mr. Robert Cohen , Deputy Assitant Chief Counsel of Hogan Lovells US LLP, 555 13th Street NW.

, Washington DC 20004

, petitioned the Federal

Aviation Administr ation (FAA) on behalf of Atlas Air Inc. (Atlas Air) for an exemption from § 121.1005(c) of Title 14 of the Code of Federal Regulations (14 CFR). The proposed exemption, if granted, would allow Atlas Air to use an individual trained on hazardous materials

p rovided the training was conducted by a part 129 carrier whose hazardous materials training program had been determined by Atlas Air to be substantially similar to its own, and Atlas Air

had

, in addition

, given that individual training only on the differen ces it found between the program of the part 129 carrier and its own hazardous materials handling program.

The petitioner requests relief from the following regulation:

Section 121.1005(c) which prescribes

, in pertinent part, that a certificate holder may use or assign a person to perform or directly supervise a job function specified in § 121.1001(a), when that person also performs or directly supervises the same job function for another certificate holder, and has additionally been trained by the using/a ssigning certificate holder in its own policies and procedures regarding those job functions

.

The petitioner supports its request with the following information:

In its petition, Atlas Air asked the FAA s Office of General Cousel (AGC) to provide an interp retation regarding § 121.1005(c)

. However, i f the FAA could not provide an interpretation, Atlas requested an exemption from § 121.1005(c) instead.2

The petitioner states that the grant of its petition would be in the public interest and will not impair or degrade aviation safety. Atlas Air believes that granting its petition will eliminate unnecessary and duplicative haz ardous materials training costs, enhance the efficiency of Atlas

Air ’s service and avoid placing Atlas Air at a competitive disadvanta ge in the global marketplace while providing an equivalent level of safety.

The petitioner further states that a grant of the requested exemption would not adversely affect safety. Atlas Air believes that it would provide a level of safety at least equiva lent to that provided by the rule from which exemption is sought.

Atlas Air further requests that any grant of exemption permit it to exercise the privileges of the exemption outside the United States to the extent necessary to accommodate Atlas Air ’s glo bal operations, which involve frequent aircraft operations to numerous destinations outside of

the United States.

A summary of the petition was published in the Federal Register on November 13 , 2013 ( 78 FR 68135 ). No comments were received.

The FAA’ s ana lysis is as follows:

The FAA has fully considered Atlas ’s petition for exemption, including supporting information, and finds a grant of exemption would not provide a level of safety at least equal to that provided by the rule from which you seek the exemp tion or be in the public interest.

In its petition, Atlas Air first proposes that it should be able to use or assign a person to perform or directly supervise a job function specified in §121.1001(a), when that person also performs or directly supervises the same job function for a part 129 air carrier, and has additionally been trained in Atlas Air policies and procedures regarding those job functions.

Atlas Air request ed a legal interpretation to clarify this is permitted because part 129 air carriers

ar e “certificate holders.” However, in a legal interpretation AGC provided to Atlas February 24, 2014, the FAA’s Office of Chief Counsel determined that a foreign air carrier operating under part 129 is in fact not a “certificate holder” as that term is used in § 121.1005(c).

The FAA finds that Atlas Air’s arguments in favor of a grant of exemption are chiefly economic. Moreover, while Atlas Air has stated that it intends to provide an equivalent level of safety in the handling of hazardous materials, it ha s provided no mechanism for how it would actually do so.

Atlas Air acknowledges that it operates worldwide to over 250 different stations, to

“ distant foreign locales with many Foreign Air Carriers .” The FAA believes that tracking the various training pr ograms of these innumerable carriers at a multitude of locations, and identifying and providing training on only the differences Atlas Air identifies, is likely to be a

difficult and error

- prone task. The FAA does not believe this effort will lead to a sim ilar safety3

result as if Atlas Air itself solely provide d and is fully responsible for the training required by

14 CFR § 121.1005.

Atlas Air seems to concede the likelihood of a wide variety of content and quality in foreign air carrier hazardous mate rials training programs when it writes in its petition that

“ f

oreign a ir c arriers do not have FAA

- approved training programs. However, Atlas would require

the f oreign a ir c arrier to provide written verification that the individual completed successfully it s hazmat training program. ” The FAA believes the responsibility for providing training required by regulation is the responsibility of the petitioner and cannot be shifted to a foreign air carrier even though Atlas Air provided several condition s of servic e. Lastly, simply documenting that an individual has completed a foreign air carrier’s hazardous materials training program does not provide assurance that United States regulatory requirements have been met.

The FAA’s Decision:

In consideration of the fo regoing, I find that a grant of exemption would not be in the public interest. Therefore, pursuant to the authority contained in 49 U.S.C. §§ 106(f), 40113 and 44701, delegated to me by the Administrator, the petition of Atlas Air Inc. for an exemption fro m 14 CFR § 121.1005(c) is hereby denied.

Issued in Washington, D

. C

. , on August 7, 2014

.

/s/ John Barbagallo Acting Deputy Director, Flight Standards Service